Excessive reverence for unwritten Senate rules has dashed the campaign to remake the bench.
Ryan C. Hermens/Lexington Herald-Leader via AP
Kentucky Supreme Court Chief Justice John D. Minton Jr. listens as Chad Meredith, then Kentucky solicitor general, makes arguments before the Kentucky Supreme Court, June 10, 2021.
Of all the disappointments brought by the Biden administration in its tepid, bewildered response to the repeal of Roe v. Wade, none was more shocking than the rumored appointment of Chad Meredith to a district court judgeship in Kentucky. A Republican, anti-choice, Federalist Society–minted lawyer, Meredith was reported to have been tapped as a favor to Mitch McConnell, to be announced the same day as the Supreme Court delivered its verdict. Generally subordinate Democrats broke ranks to condemn the rumored nomination in the days to follow, but the ultimate insult was still to come. Meredith’s appointment was dashed, not by activist outrage or the White House’s better sense, but by Kentucky’s junior senator Rand Paul, who was unwilling to turn in his blue slip—a piece of paper indicating home-state senator support of the nominee—out of spite for McConnell’s deal-making with the White House without consulting him.
Since before President Biden was even sworn in, he has made clear that one of the areas where he would break with recent Democratic tradition was the judiciary. Unlike his predecessors, he would take it seriously, moving quickly to fill vacancies and doing so with nominees that broke the mold of corporate lawyers and prosecutors that dominate the federal bench. Then-White House counsel Dana Remus circulated a now-legendary letter insisting that senators submit home-state judicial recommendations for district court nominees within 45 days of a vacancy arising, and requested that those nominees hail from backgrounds of civil rights law, public defense, or public interest.
The first year of the administration showed a strong commitment to this ambition. The Biden White House far outpaced other Democratic administrations in filling vacancies, actually confirming the most judges for a first-year president since Ronald Reagan; Donald Trump only confirmed 18 in year one, and Barack Obama just 12. Biden also nominated an overwhelming number of judges with public-service backgrounds (though not all).
But in year two, that project has collapsed. The quality of nominees has deteriorated, as corporate lawyers have regained the lion’s share of appointments. An excessive and unrequited deference to Senate norms and procedures has gummed up the confirmation process, resulting in a number of Republican-picked judges getting confirmed, even as up to 65 seats could remain unfilled by the end of the year.
“The Remus letter was rightfully seen as this incredible document, and there were pretty high hopes at the outset. In the first year of the administration, everyone agreed that the White House did a great job with judges,” said Molly Coleman, co-founder of the People’s Parity Project, a progressive legal advocacy group. “Now, they’re just not making it a priority at all. In addition to the inactivity, it seems pretty obvious that we’re going back to Obama-style nominees the closer we get to the midterms.”
The blame lies with both Senate Democrats and the president. While Meredith’s appointment grabbed headlines, he’s hardly the only Republican-picked judge that Biden has been willing to put up for a lifetime appointment. Not two weeks ago, just after the Meredith debacle resolved, Senate Democrats confirmed Stephen Locher, a former prosecutor, for a federal district court seat in Iowa. Locher was handpicked by Republican Iowa Sen. Chuck Grassley, supported by his Republican colleague Sen. Joni Ernst, and then appointed by Biden.
The quality of nominees has deteriorated, as corporate lawyers have regained the lion’s share of appointments.
Locher has been one of the rare nominees to move through the confirmation process quickly. The Senate Judiciary Committee, helmed by Democratic chairman Dick Durbin, has now become the biggest bottleneck for getting any appointments through. Currently, the committee only meets every other week, and only calls for two circuit and three district nominees per hearing, an arbitrary quantity determined by Republicans when they were in the majority under Trump. Biden has not publicly called on the committee to meet more frequently, or to process more nominees per meeting; Durbin has not taken the initiative. Unless the Judiciary Committee alters its schedule, the result is that at least two-thirds of the current 100 vacancies will go unfilled by the time the new Senate is sworn in in January, even in a best-case scenario. Senate Democrats seem to have no problem with that outcome—one Judiciary Committee aide told Bloomberg News, “I don’t think there’s any reason for us to change the way we’re operating.”
Simultaneously, Biden and Durbin have kept in place the blue-slip system, an unwritten Senate procedure that has allowed Republican senators to continue to wield veto power over nominees from their own states (by tradition, senators turn in a blue slip of paper to signal consent for the nominee). And when Senate Democrats have nominated corporate lawyers themselves, or dragged their feet in submitting recommendations, Biden has simply gone ahead with those candidates anyway. Remus, meanwhile, has left the White House.
It will come as no surprise that Trump and Senate Republicans did not limit themselves to custom. With a narrow Senate majority, Trump (or more specifically the Federalist Society lifers running his judicial confirmation process) took the courts extremely seriously, totally overhauling the makeup of the courts in the process. Working with Grassley, they shredded the blue-slip system, giving Democrats no veto power over nominees. They rewrote the schedule to pass through more nominees in every hearing. And when time was running short before the 2018 midterms that might have cost them their majority, as is currently the case for Democrats, Senate Republicans simply met during the August recess to push through as many new judges as possible. Senate Democrats have no such plan to meet during the August recess: Not a single Democratic member of the Senate Judiciary Committee responded to a request for comment as to whether they’d entertain meeting during the recess period. Biden has not called for it.
But it’s not only fusty senators that have forced Biden back into a reliance on elevating corporate lawyers. His recent nominations that don’t require Senate input, like the all-important D.C. Circuit Court, the country’s second-most-powerful legislative body, also indicate that the president has given up his commitment to professional diversity and public-service backgrounds. In mid-June, he named Brad Garcia to the D.C. Circuit, a corporate lawyer and graduate of BigLaw firm O’Melveny, known for representing Google, Fidelity, and China Agritech. Just last week, Senate Democrats voted to confirm Michelle Childs to the D.C. Circuit Court as well, a judge who was floated for the Supreme Court but ultimately dogged by her record working for an anti-union law firm as an employer-side attorney.
“The feeling is, that’s about as good as we’re going to get in this administration at this point,” added Coleman.
Biden, ever the institutionalist, has let the Senate run roughshod over his legislative agenda. Between the seemingly arbitrary rulings of the parliamentarian and the ever-present filibuster, unwritten procedural rules have made passing laws impossible. Now, unwritten rules like blue slips imperil even his appointments. Meanwhile, the Supreme Court has become by far the most powerful legislative actor in the country, delivering conservative governance above and beyond what the executive has been able to enact.
Biden has long refused more radical proposals to overhaul the judiciary, but he did set out to rebalance the courts after Trump’s appointment blitz. That alone would have been a signature accomplishment for a president with razor-thin majorities, and represented a lasting legacy. It got off to a solid start. But now, not even two years in, that campaign has been abandoned at a critical moment, one that should have made judicial appointments seem more urgent than ever. With a midterm wipeout looming, it’s possible that, come January, Democrats will not be able to confirm a progressive judge to any federal position for the rest of Biden’s term, if not longer.
A profound lack of urgency has come to define the Biden presidency. So, too, has the impact of the courts. Initially, it seemed like that was going to mean that Biden had blunted the impact of the right-wing takeover; now, his term looks like it will be defined by having succumbed to it, having protected only the sanctity of the Senate’s summer vacation.
Alexander Sammon is a staff writer at The American Prospect.
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